MARVIN E. MARSHALL, APPELLANT,
v.
FRED GORE, A/K/A F.L. GORE AND M.R.B., INC., A FLORIDA CORPORATION, APPELLEES
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Marvin Marshall appeals a trial court injunction enforcing a non-compete agreement that prohibited him from engaging in any computer software business. The appellate court affirms the injunction as a reasonable restraint of trade but reverses and narrows its scope to restrict only software that competes with the employer's specific business (dairy feeding programs) rather than all computer software development.
A non-compete injunction is proper where the employer has a legitimate business interest to protect, but the scope of the injunction was overly broad. The court affirms the injunction and its nationwide geographic scope but reverses the restriction to limit it only to software that competes with the employer's specific dairy feeding program business, rather than all computer software development.
[1] A non-compete agreement is enforceable when it protects a legitimate business interest of the employer and does not unduly restrict the employee's ability to earn a livel…
[2] An injunction must clearly define the prohibited conduct to ensure reasonable certainty.
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Join FLexlaw to unlock all legal intelligence“An injunction must state with reasonable certainty what the defendant is prohibited from doing. Somerstein v. City of Miami Beach, 319 So.2d 158 (Fla. 3d DCA 1975). It must not unduly restrict one's livelihood.”
Establishes the legal standard for evaluating the reasonableness of an injunction's scope
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Join FLexlaw to unlock all legal intelligenceMarshall, a ruminant nutritionist and computer programmer, developed a formula and software for feeding dairy cows while employed by M.R.B., Inc. His …
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CAMPBELL, Judge.
Appellant, Marvin E. Marshall, appeals the trial court order that enforced a non-compete clause and enjoined appellant from engaging in or being employed by any firm involved in the development and marketing of computer software, or in any business that competed with appellee, M.R.B., Inc. Appellant, a ruminant nutritionist and a computer programmer, developed a formula and computer software for feeding dairy cows. Appellant contracted to work for M.R.B., Inc. The employment contract contained a noncompete agreement that appellant would not engage in the business of development or marketing of computer software, or in any business that competed with M.R.B., Inc. for five years from the date his employment ceased. The five-year period was later reduced to two years.
Appellant argues that the noncompete agreement violates section 542.33, Florida Statutes (1981) because the restrictions are not reasonably limited in time and area. We believe that under Auto Club Affiliates, Inc. v. Donahey, 281 So. 2d 239 (Fla. 2d DCA 1973), the employer had a legitimate interest in protecting its business, and appellant had a legitimate interest in maintaining a livelihood. While we believe that an injunction was proper and was not an unreasonable restraint of trade, we question the breadth of the restrictions imposed. The evidence is sufficient to warrant the nationwide scope since appellee had sold forty-two software programs to dairies in Pennsylvania, Iowa, Wisconsin, Ohio, Vermont, Missouri and Oregon. It also advertised in a nationwide dairy publi cation. However, we believe that the scope of the injunction prohibiting appellant from participating in any computer software business is too broad. Appellant should not be completely prohibited from all participation in the computer software business. See Capelouto v. Orkin Exterminating Co. of Florida, 183 So. 2d 532 (Fla.1966).
An injunction must state with reasonable certainty what the defendant is prohibited from doing. Somerstein v. City of Miami Beach, 319 So. 2d 158 (Fla. 3d DCA 1975). It must not unduly restrict one’s livelihood. Auto Club Affiliates, Inc. Appellant here is prohibited from participating in any business that relates to the development and marketing of computer software. Since appellee is not in the general business of developing and marketing computer software, the injunction protects more than appellee’s legitimate business interests. The language of both the noncompete agreement and the court order is too broad since it applies to all computer software development; it does not limit its restriction of appellant’s activities to those that compete with M.R.B., Inc. We, therefore, affirm the imposition of an injunction, but reverse as to the scope of the order, and accordingly alter the trial court’s order as follows: “Marvin E. Marshall shall not, for two years from the date of entry of the final judgment, directly or indirectly, engage in any business or be employed by any person, firm or corporation in the United States that competes with M.R.B., Inc. in the development and marketing of computer software for management and programming of dairy feeding programs.”
SCHEB, A.C.J., and SANDERLIN, JJ., concur.
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Citator
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Hapney v. Cent. Garage, Inc., 579 So. 2d 127 (Fla. 2d DCA 1991)…affecting only the Pasco County practice to protect by barring Forbes from practicing in Pinellas County.... The obvious and sole purpose of the covenant was to exclude Forbes from competing with Flatley in Pinellas County. And in Marshall v. Gore, 506 So. 2d 91, 92 (Fla. 2d DCA 1987), we limited the scope of an injunction to protect only the “legitimate business interests” of the employer. Perhaps most fundamental to our determination is that “[t]he right to work, earn a living and acquire and possess pro…
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Mathieu v. OLD Town Flower Shops Inc., 585 So. 2d 1160 (Fla. 4th DCA 1991)…llor’s “extension” by application from the temporary injunction date. It is instead the length of the period of the covenant itself. We regard three years as the outside period that the court could have found reasonable. See, e.g., Marshall v. Gore, 506 So. 2d 91 (Fla. 2d DCA 1987) (five year period reduced to two years); and Dorminy v. Frank B. Hall & Co., 464 So. 2d 154 (Fla. 5th DCA 1985) (three year period not unreasonable; trial court’s reduction to one and a half years reversed). In Dorminy the court…
Authorities Cited
- Reuben Capelouto v. Orkin Exterminating Co. OF Fla., Inc., 183 So. 2d 532 (Fla. 1966)
- Auto Club Affiliates, Inc. v. Donahey, 281 So. 2d 239 (Fla. 2d DCA 1973)
- Somerstein v. City OF Miami Beach, 319 So. 2d 158 (Fla. 3d DCA 1975)